As usual Mr Grayling is wrong, this time on Human Rights

With the Conservative conference in full swing there is no easier way to get applause than to attack Europe. There is a powerful and coherent case to be made for withdrawal from the ghastly morass of the EU. It is a case that is made every week by intellectual heavyweights such as MEP Daniel Hannan.

Withdrawal from the EU would, of course, be extraordinarily difficult, not least because of the need to win a referendum, which would be presented as a vote of confidence in David Cameron’s “renegotiation” of EU membership terms.

It may be partly for this reason that others, such as Chris Grayling and Theresa May have switched their attention to away from the EU and wish to commit the Party to fight the next election committed to the somewhat easier option of repealing the Human Rights Act – the “Labour Human Rights Act as Mr Grayling has recently taken to calling it – and withdrawing from the European Convention on Human Rights.

The policy is popular within the Conservative Party for four reasons, all of them bad.

First, even those who should know better lazily assume that the Convention and its associated Court of Human Rights (ECtHR) is something to do with the EU. It is not: with the exception of the barmy dictatorship of Belarus every country west of the Urals is a member.

Secondly the ECtHR regularly makes unpopular decisions. So it does, but so too does every other court that has ever existed.

Thirdly, human rights law is perceived as providing a gravy train to smug left wing lawyers. This was Mr Grayling’s line in a Daily Mail interview in early September. It is a gross exaggeration and even if it were true it would be a very bad reason. Lawyers are always unpopular: the best ones usually become rich, very often smug and surprisingly often left-wing. But they are essential for any functioning legal system. (And as an aside it is perhaps unwise for those living in the political glass-house to throw stones in a protest about gravy trains).

Fourthly, the Convention is seen as an infringement of British sovereignty, by giving foreign judges power over us. That is the most substantial objection but it too is ill-founded.

Conservatives have always been suspicious of constitutional instruments setting out fine statements of principle, of which the ECHR is a good example. Tradition and a cautious pessimism are considered sounder guides to decision making than political theory or legal principles. Despite this the Convention is in many ways a Conservative document. Its leading author was a Conservative lawyer, later Home Secretary and Lord Chancellor, Sir David Maxwell-Fyfe. It was then ratified by a government headed by Sir Winston Churchill.

Even more than political theory, Conservatives are wary of untramelled democracy, as Winston Churchill explained in a House of Commons debate on the 1947 Parliament Bill:

‘Democracy … does not mean, ‘We have got our majority, never mind how, and we have our lease of office for five years, so what are you going to do about it?’ That is not democracy, that is only small party patter .…. Of course, there must be proper executive power to any Government, but our British, our English idea, in a special sense, has always been a system of balanced rights and divided authority, with many other persons and organised bodies having to be considered besides the Government of the day ….’

In the same vein, delivering the 1976 BBC Dimbleby Lecture1 Lord Hailsham, a wheezy, rabble-rousing veteran of many a Conservative Party conference warned of the danger that a government elected on a simple majority could act without proper restraint on its power, a situation he memorably described as ‘an elective dictatorship.’ His solution was :

‘… nothing less than a written constitution for the United Kingdom, and by that I mean one which limits the powers of Parliament and provides a means of enforcing these limitations either by political or legal means.’

We do not have a written constitution but The Human Rights Act and the European Convention can easily be accommodated within this tradition. Together they provide a much needed restraint on the power of the executive. Almost all of the rights guaranteed under the Convention are those with which it would be hard for any civilised person to disagree. Who would be prepared to argue against the right to a fair trial, to a private and family life, or to freedom of religion? Of course in practice these rights often conflict and that is where we need judges, but the fact that their existence is spelt out in the Convention means that they cannot simply be ignored.

But it is not the restraint on the power of the executive per se that bothers most modern Conservatives so much as the fact that the ultimate arbiters of the European Convention are the judges of the European Court of Human Rights: in other words, foreign judges.

But the ECtHR is not an ordinary court. For a start you cannot begin a case in it. You can only go there once all attempts at domestic remedies have been exhausted. Although a final court of appeal, its powers are very limited. Unlike our own Supreme Court it cannot declare what UK law is, nor can it change it. It can call for (usually modest) sums to be paid in damages, but essentially its power is to declare that in a particular case somebody’s rights under the Convention have been breached. Under Article 46 of the Convention it is then up to the government of the country concerned to comply with the ruling. Some countries, Russia is a prime example, routinely refuse to do so. Their refusal puts them in breach of their international obligations. Britain generally complies, although sometimes, as with the ruling on the automatic voting ban for prisoners, compliance comes so slowly it amounts to little more than lip service.

Part of the problem lies in the salmagundi of courts, conventions and acronyms which befuddles clear thinking on the subject. The European Court of Human Rights (ECtHR) decides cases brought under the European Convention on Human Rights (ECHR). The European Court of Justice (ECJ) decides entirely different points about EU law, although just to add to the confusion the European Union is shortly to accede to the European Convention in its own right, and the ECJ is increasingly showing an interest in human rights law.

Unlike the ECJ the ECtHR cannot over-rule Parliament or the British courts; so it is rather surprising that Mr Grayling – who is, after all Lord Chancellor – either did not know that, or more likely, has chosen for political reasons to imply that it can.. Conservatives are right to be jealous of the sovereignty of Parliament, but agreement to abide by decisions of the ECtHR does not compromise it in any way. Rather the Court acts in a way that Churchill would have approved, as part of a ‘system of balanced rights and divided authority.’ Conservatives have no objection to the British government complying with international treaties and the ECtHR no more infringes our sovereignty than does compliance with other international treaties. There have been some suggestions that we should act like Mr Putin and simply ignore the judgements that we don’t like. Nonsense: others may regard us as perfidious Albion, but to a Conservative, if Her Majesty gives her word, Her Majesty keeps it.

The irony is that the Human Rights Act has, if anything, taken influence away from the ECtHR and given it back to the British courts. Before 1998 any ruling that a particular law contravened the Convention could only come from the ECtHR: since then British courts have been empowered to make a “declaration of incompatibility,” although not to strike down the law in question.

Daniel Hannan recently posed the question “what harm could come from our withdrawal from the ECHR?” As one would expect from a serious politician, who manages to make the current Lord Chancellor look like the class dunce as well as the school bully, it is a good question but there are any number of answers to it. Do we want our courts to be forced to expel people to face certain torture and execution? Or just probable torture and execution? Or even a risk of torture and execution? Or to face corrupt kangaroo courts where the verdict is determined by who can pay the biggest bribe?

Or let us leave aside the question of deportation and think of other ways in which harm might be done by abandoning the Human Rights Act and the Convention. Let’s imagine that in the happy year after withdrawal from the ECHR and repeal of the HRA an imaginary Conservative politician, an even bigger beast than Grayling perhaps – we can give him the fine old English name of Salmon – flushed with the triumph of reasserting the power of Parliament, is wrongly accused of rape. Salmon’s defence is that the woman making the complaint – let’s call her Jane – had consented; the couple had had a long and happy relationship which turned sour. She went to the police in order to destroy his career.

But Salmon would find, no doubt to his horror that the prosecution objected to him asking any questions about his prior consensual relationship with Jane. They would rely upon S.41 of the Youth Justice and Criminal Evidence Act 1999 (the “Labour” Youth Justice and Criminal Evidence Act), the wording of which appears, on any ordinary reading, to prevent questions being asked about Jane’s previous sexual conduct where the issue is one of consent.

Plaintively Salmon’s lawyers would say: “that’s not fair.” And indeed it would not be. S.41 was passed, incidentally by a Labour government, in order to skew the balance of rape trials in favour of complainants. It is certainly not fair, it was probably not meant to be fair, and was recognised by the House of Lords as being unfair in the case of R v. A (No. 2)2 It was an example of Parliament passing a law that on any ordinary reading was unfair to defendants in rape cases. But the House of Lords – not, please note, the European Court of Human Rights – was able to use the Human Rights Act to hold that the section could be interpreted as permitting such cross-examination if it was necessary to ensure a “fair trial” in accordance with Article 6 of the Convention.

But that jurisprudence would be of no help to Salmon in the Brave New World following repeal of the Human Rights Act. The courts would have to revert to the pre-1999 principles of statutory construction which would not permit of such an interpretation. His trial would be unfair, and there would be nothing that a court could do about it. Nor, the Government having withdrawn from the Convention, could he even seek a declaration from the ECtHR that it had been unfair. Thanks to repeal of the Human Rights Act, Mr Salmon would be left as the victim of an unfair trial, convicted and without a remedy.

Many Conservatives have argued for replacing both with a ‘British Bill of Rights’. It is a seductive prospect but the idea is profoundly misguided. Withdrawal would do nothing to enhance British sovereignty which is under threat not from the European Convention but from the European Union. A “British Bill of Rights” would require the writing of yet another lofty-sounding constitutional document, and doing so not in the context of general agreement but of fierce controversy. Agreement on its contents would make the reform of the House of Lords look straightforward. If the British Bill of Rights contained the same rights as the Convention what would be the point? If it had any effect at all (which is doubtful) it would probably be to encourage our own courts to become more rather than less activist in their defence of human rights. In concrete terms that would mean more criminals not deported, more chancers bringing spurious cases before the courts and more of them succeeding: in other words the precise opposite of what Mr Grayling wants to achieve. But if it contained different rights from the those in the ECHR, what would they be? Mr Grayling has yet to give us a clue.

Withdrawal from the Convention without putting in place an alternative would leave us be left with a stronger executive and a weaker judiciary. Individuals and minorities will be stripped of an important part of their legal protection. Mr Grayling and some Conservative politicians might welcome this, at least until they lose power: the rest of us should regard it with dismay.

The proper Conservative position should be to conserve what has now become the status quo: adherence to a Convention that has stood the test of time, and to a Human Rights Act that places proper restraints on the executive, protects minorities and individuals, and leaves parliamentary sovereignty intact. We should remain in the Convention and keep the Human Rights Act.

(This is a longer version of an article that first appeared Standpoint October 2013)

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly
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